Maryland court considers liability of bars in drunken-driving crashes

Rev and Mrs. Warr and Cortavia Harris

Steve Ruark / BALTIMORE SUN

From left, the Rev. William Warr, his wife Angela and granddaughter Cortavia Harris, the family of Jazimen Warr, sit with a photo of Jazimen at the office of attorney Andrew Bederman, not pictured, in Silver Spring on March 8. Jazimen Warr was killed by a drunk driver in 2008.

From left, the Rev. William Warr, his wife Angela and granddaughter Cortavia Harris, the family of Jazimen Warr, sit with a photo of Jazimen at the office of attorney Andrew Bederman, not pictured, in Silver Spring on March 8. Jazimen Warr was killed by a drunk driver in 2008. (Steve Ruark / BALTIMORE SUN)

Andrea F. Siegel, The Baltimore Sun

Michael D. Eaton ran up a tab for 17 beers plus other drinks before he left a Gaithersburg tavern, according to court records. Forty-five minutes later, behind the wheel of his Range Rover, he slammed into the back of a Jeep Cherokee at a speed estimated as high as 98 mph.

Ten-year-old Jazimen Warr had nestled on her sister's shoulder, the two children sleeping in the back of the family's Cherokee on the drive to a relative's home in Bowie. She was killed and the rest of her family sustained injuries in the crash.

That was Aug. 21, 2008.

Now, that crash on Interstate 270 could upend Maryland law and allow victims of drunken-driving crashes and their families to sue bars and restaurants if their inebriated patrons cause deaths and injuries.

Jazimen's grandparents are scheduled to ask Maryland's highest court Tuesday to revive their $3.25 million lawsuit against the Dogfish Head Alehouse, where they allege Eaton, of Fairfax, Va., ran up his tab, some of which may have included drinks for other patrons.

"If you're going to load up somebody with liquor, at least be responsible so they don't get behind the wheel," said the Rev. William Warr of Urbana , the child's disabled grandfather who, with his wife, Angela, were raising Jazimen and her sister Cortavia Harris. Cortavia suffered a broken hip in the wreck.

Dogfish Head Alehouse has fought back, urging the Court of Appeals to reject the Warrs' claim. An attorney representing the corporation that owns the tavern declined to comment on the pending case.

Bar and restaurant owners are among those watching the case closely.

Business operators say measures are already in place to cut off customers who appear intoxicated, and bartenders try not to let them drive. They say they can't control the actions of someone who leaves their premises. In addition, they say the prospect of being blamed for a customer's drunken-driving crash would raise insurance premiums for them, raise prices for customers and lead some businesses to shut their doors.

"It's very hard to be responsible for someone else's behavior," said Jack Milani, a partner in Monaghan's Pub in Woodlawn and chairman of the Legislative Committee for the Maryland State Licensed Beverage Association. A bartender wouldn't know if a patron drank elsewhere before or after coming to his business, or had used drugs, he said.

A generation ago, fewer than half of all states permitted lawsuits against taverns whose patrons drove drunk and caused serious crashes. Now, Maryland is in the minority of states that don't allow those lawsuits against the taverns under any circumstances.

During that period of change, Mothers Against Drunk Driving — which filed a brief supporting the Warrs — and similar organizations have exploded onto the scene, "designated driver" is a commonly understood term, and motorists commonly face sobriety checkpoints and harsh penalties for driving under the influence.

Attitudes have changed as drunken driving has come under increasing scrutiny nationwide, said the Warrs' attorney, Andrew E. Bederman of Silver Spring.

According to a state Department of Legislative Services review last year, 36 states and Washington, D.C., have those measures, and 43 states have them for underage customers.

Moves in the past two years by lawmakers from Montgomery County to create in Maryland what's known as a "dram shop liability" law — the term essentially relates to a bar or tavern selling alcohol, with "dram" being a small unit of measure — didn't make it out of the House Judiciary Committee.

Bar and restaurant operators opposed those measures. The Warrs have testified in favor, hoping to see "Jazimen's Law" adopted.

"One of our main purposes is that no other person goes through this," said Angela Warr, a special-education instructional assistant in a Frederick County school.

She said she and her husband — who took the girls as toddlers from a troubled home with the hope of giving them a better life — continue to suffer. So does Jazimen's sister, Cortavia, who is two years older than Jazimen and is now a teenager.

"They were each other's best friends," Angela Warr said. "They said when they got older, they were going to live together or were going to live down the road from each other and see each other every day."

Eaton, who according to court records left the site of the crash and surrendered to police the next day, pleaded guilty in 2009 to manslaughter in Jazimen's death and leaving the scene of an accident. He was sentenced to serve eight years in prison, with additional years suspended. A civil lawsuit against him on behalf of Cortavia was settled for $100,000, according to electronic court records. Bederman said any other agreement with the defendant's insurer was confidential.

In 2010, the Warrs sued the owners of Dogfish Head Alehouse, where police said Eaton had been drinking, and the tavern owners were successful in having the case dismissed before trial from the Montgomery County Circuit Court last year. The Warrs appealed.

In a legal brief to the Court of Appeals, tavern and restaurant operators are urging the state's top court not to tread where lawmakers have chosen not to.

"This court cannot reach all of the legal and policy issues related to the adoption of dram shop liability as the General Assembly can, and this will result in uncertainty," the beverage association and the Restaurant Association of Maryland wrote.

Attorneys for the company that owns Dogfish Head Alehouse told the court in written arguments that under current state laws and policies, sellers may face criminal charges for selling to obviously drunken people but not civil lawsuits.

For the court to create dram shop liability, they wrote, "it will require to leap beyond any established Maryland law" to decide that a tavern is legally obligated to "protect the public from actions committed by individuals who have been served alcoholic beverages."

Bederman said society is far different from the horse-and-buggy days of shops that sold alcohol by the dram — not the least being that a drunken driver holds the wheel of a fast-moving and powerful car, not the reins of a slower animal. He also said legal interpretations have changed in the 32 years since the Court of Appeals ruled against joining what was then an up-and-coming trend toward dram shop liability.

"Would a reasonable person foresee that a person who is served to the level of intoxication that [Eaton] was, is it foreseeable that this guy is going to get behind the wheel of a car and drive to Virginia or wherever he lives and injure someone or kill someone? It's as foreseeable as a mountain on a sunny day," Bederman said.

"If this becomes law, you know what's going to happen?" he said. "They [bars and restaurants] will be deterred. They will keep their eyes open. It will not lead to more litigation."

The Maryland Association for Justice, an organization of lawyers that represents people who sue for injuries and other harm, supports the Warrs' claim. In a brief filed with the court, it wrote that some costs borne by innocent victims of drunken drivers should be shifted to businesses that benefit from alcohol sales.

They point to a 2011 review in the American Journal of Preventive Medicine that found alcohol-related traffic fatalities dropped by as much as 11 percent where taverns and restaurants faced the possibility of lawsuits, and National Highway Traffic Safety Administration calculations, based on 1999 data, that said alcohol was a factor in 22 percent of crash costs in Maryland.

Robert Lande, the Venable professor of law at the University of Baltimore's law school, said Maryland is conservative when it comes to providing financial relief for people who have suffered injuries. Still, he predicted that if the court decides to permit victims to sue bars, Maryland won't go dry.

"I'm sure that they haven't gone out of business in 40-plus states," he said.

"They may lose some revenue, they'll have to pay more for insurance. There will be an economic effect," he said. "But it is hard to believe it would be that severe an economic effect, because we aren't the first state to do it."